Tsarnaev admits guilt, apologizes and is sentenced to death UPDATED BELOW

June 24, 2015

Judge George O’Toole sentenced Dzhokhar Tsarnaev to death today for his role in the Boston Marathon Bombing case. The sentence was not in doubt because he was obligated to formally sentence him to death, given the jury’s death verdict.

Victims who survived and family members of victims who died came to court today to speak at sentencing. Here is a sample of what they said,

Johanna Hantel:

“If have to crawl I am going to run every year. I will not let this sickening act take that away from me.”

Unknown Person:

“I came to the first two days of the trial…the defendant, he sat there blank. I realized, I’m alive, and he’s already dead.”

Krystle Campbell’s mother:

“The choices you made were despicable.”

Officer Sean Collier’s sister:

“I do not know the defendant, nor do I care to know him. He is a coward and a liar. He ran his own brother over with a car. He had no issues shooting mine in the head . . . he spit in the face of the American dream.”

Bill and Denise Richard:

“He chose hate. He chose destruction. He chose death . . . We choose love. We choose kindness. We choose peace. This is what makes us different than him. On the day he meets his maker, may he understand what he has done and may justice and peace be found.”

Dzhokhar Tsarnaev spoke for the first time during the trial.*

“Thank you, your honor….I would like to begin in the name of Allah . . . This is the blessed month of Ramadan, the month of mercy . . . the month to ask forgiveness. I ask forgiveness of Allah & to his creation . . . In trial more of victims given names and faces. All those on witness stand, I was listening. I was listening, I heard strength, patience, dignity. Id like to thank the jury. I would like to apologize to the victims and the survivors. I am sorry for the lives I have taken and the suffering I caused and the damage I’ve done. I have done irreparable damage. I ask Allah for mercy for me and for my brother . . . I pray to Allah to bestow his mercy on you . . . I pray for your relief, for your healing. For your well-being, for your health. Praise be to Allah, the Lord of the world. Thank you.”

*I composed his statement from reviewing hundreds of tweets from the courtroom as they were posted on twitter.

UPDATE: We now have a court transcript of his statement from the Boston Globe:

Thank you, your Honor, for giving me an opportunity to speak. I would like to begin in the name of Allah, the exalted and glorious, the most gracious, the most merciful, “Allah” among the most beautiful names. Any act that does not begin in the name of God is separate from goodness.

This is the blessed month of Ramadan, and it is the month of mercy from Allah to his creation, a month to ask forgiveness of Allah and of his creation, a month to express gratitude to Allah and to his creation. It’s the month of reconciliation, a month of patience, a month during which hearts change. Indeed, a month of many blessings.

The Prophet Muhammad, peace and blessings be upon him, said if you have not thanked the people, you have not thanked God. So I would like to first thank my attorneys, those who sit at this table, the table behind me, and many more behind the scenes. They have done much good for me, for my family. They made my life the last two years very easy. I cherish their company. They’re lovely companions. I thank you.

I would like to thank those who took time out of their daily lives to come and testify on my behalf despite the pressure. I’d like to thank the jury for their service, and the Court. The Prophet Muhammad, peace and blessings be upon him, said that if you do not — if you are not merciful to Allah’s creation, Allah will not be merciful to you, so I’d like to now apologize to the victims, to the survivors.

Immediately after the bombing, which I am guilty of — if there’s any lingering doubt about that, let there be no more. I did do it along with my brother — I learned of some of the victims. I learned their names, their faces, their age. And throughout this trial more of those victims were given names, more of those victims had faces, and they had burdened souls.

Now, all those who got up on that witness stand and that podium related to us — to me — I was listening — the suffering that was and the hardship that still is, with strength and with patience and with dignity. Now, Allah says in the Qur’an that no soul is burdened with more than it can bear, and you told us just how unbearable it was, how horrendous it was, this thing I put you through. And I know that you kept that much. I know that there isn’t enough time in the day for you to have related to us everything. I also wish that far more people had a chance to get up there, but I took them from you.

Now, I am sorry for the lives that I’ve taken, for the suffering that I’ve caused you, for the damage that I’ve done. Irreparable damage.

Now, I am a Muslim. My religion is Islam. The God I worship, besides whom there is no other God, is Allah. And I prayed for Allah to bestow his mercy upon the deceased, those affected in the bombing and their families. Allah says in the Qur’an that with every hardship there is relief. I pray for your relief, for your healing, for your well-being, for your strength.

I ask Allah to have mercy upon me and my brother and my family. I ask Allah to bestow his mercy upon those present here today. And Allah knows best those deserving of his mercy. And I ask Allah to have mercy upon the ummah of Prophet Muhammad, peace and blessings be upon him. Amin. Praise be to Allah, the Lord of the Worlds.

Thank you.


Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?

Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.

Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.

There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.

Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.

I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.

I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.

Judy Clarke plans to use the trial to save his life.


Opening Statements Today in Boston Marathon Bombing Case

March 4, 2015

Opening statements are not evidence and they are not arguments. They are statements by the lawyers to sketch out their respective cases for the jury. Think of them as guided tours of the witnesses to be called and the evidence to be introduced. They are often described as roadmaps of the case and you can reasonably expect many sentences will begin with the phrase, “The evidence will show . . . “

Since the burden of proof is on the prosecution, the defense is not required to give an opening statement, but it would be foolish not to do so because they will not get another chance to speak to the jury until after the prosecution finishes putting on its case-in-chief, which will likely take several months.

I always gave an opening statement after the prosecution’s opening so that I could break their momentum and get the jury thinking about my case and I believe the defense will give an opening statement today for the same reason.

As I have said before, I do not believe this case is about winning or losing for the defense. It is about living or dying. From the defense perspective, they are going to be using the guilt/innocence phase of the trial as a slow motion guilty plea emphasizing evidence that mitigates the offense.

The defense has three powerful mitigators: Dzhokhar’s youth and immaturity, his absence of a serious criminal record, and most importantly, his fawning and submissive relationship with his older brother Tamerlan. When Tamerlan said, “Frog,” Dzhokhar said, “How high do I jump?” Beginning with their opening statement, I expect the defense will emphasize these mitigators every time an opportunity arises.

I am not expecting the defense to advance any elaborate government conspiracy theory to frame the Tsarnaev brothers. I do not believe there is any evidence to support such a theory and pursuing it would likely infuriate the jury and assure a death sentence. This does not necessarily mean they will refrain from mentioning and exploiting errors of commission or omission by law enforcement.

To our readers: Crane and I have been posting regularly at Firedoglake during Jane Hamsher’s hiatus from the site. She is the owner. You can expect to see my articles here more often as I am now growing more comfortable handling my responsibilities there.


Tsarnaev Voir Dire: This is my friend Dzhokhar

January 16, 2015

Voir dire (to question) is underway. The video is an interview of Ted Wayman, a former WBZ News anchor in Boston who was summoned for jury duty in the Tsarnaev case and excused because of his substantial job related contacts with Judge O’Toole, federal prosecutors and law enforcement officers who will be testifying at the trial. The interview was conducted by Adam Reilly, a reporter for Greater Boston.

Q: What did you make of his demeanor, when he came in? Were you watching him closely?

A: Everybody, all eyes, once he came in, were on him, like almost gasped within the courtroom. Oh my gosh! That’s the defendant. Uhm, unresponsive. Really uninterested in the whole process. Had very little contact with his defense team. He was sitting in the middle of them. Uhm, really didn’t look at the jury pool. Didn’t look at the media that was there. Didn’t look at the judge when he addressed the defendant. He was uninterested in the whole process.

This is a terrible way for the defense to start jury selection. First impressions matter, a lot, and if I were a member of Dzhokhar Tsarnaev’s defense team, I would be extremely concerned about the ability of the rest of the 200 or so prospective jurors, who witnessed that not-so-grand entry, to be fair and impartial jurors.

Another tell is Wayman’s reference to Dzhokhar as ‘the defendant.’ He’s not thinking of him as a person; he’s thinking of him as a thing. That means he has already decided that Dzhokhar is guilty. Fortunately for the defense, they will not have to use a peremptory challenge to get rid of him.

I always made a point of humanizing my client throughout the trial by referring to him by his first name, touching him, and conversing with him in an effort to provoke a smile. At almost every moment of a trial, at least one juror will be watching the client. Trials are a form of theater. Nonverbal conduct is a form of testimony. Most jurors can detect insincerity. Therefore, the lawyer must avoid scripting the client’s behavior and instead provoke the desired genuine response with the right word or gesture at the right time. This skill is not taught in law school and cannot be found in a book. Yet, if performed at the right time in the right way, it can make the difference between a conviction and an acquittal or a life sentence and a death sentence.

The defense team apparently discovered the problem because reporters observing voir dire today have tweeted that Dzhokhar appears relaxed, engaged with the process and communicating with his attorneys. For example,

O’Ryan Johnson ‏@crimeboston 3h3 hours ago

Dzhokhar shares a laugh at the defense table with Def. Lawyer Miriam Conrad. Tsarnaev wearing open collar shirt, blazer. He’s relaxed,chatty

Jim Armstrong ✔ @JimArmstrongWBZ

I am a pool reporter* for this session of #Tsarnaev jury selection. He just re-entered from lunch, says hello to lawyers by name.

*Today is the second day of voir dire. The reporters were segregated yesterday in a room watching a live feed video of voir dire. Technical difficulties resulted in a change in procedure. Two reporters are now permitted in the courtroom to report on the proceedings. They share their work product with the other reporters outside the courtroom and are replaced by another two reporters and so on per each session.


Dzhokhar Tsarnaev: Opening Statements

January 15, 2015

Thursday, January 15, 2015

Good morning:

I write today about the purpose of an opening statement in a jury trial in a criminal case and distinguish it from a closing argument, which I regard to be considerably less important. Generally speaking, if a defendant’s lawyer has failed to persuade jurors that a reasonable doubt exists before closing arguments, nothing the lawyer says during closing argument is going to prevent a guilty verdict.

After a jury has been selected and sworn, the lawyers have an opportunity to preview their respective cases for the jury. We call this opportunity the opening statements of counsel. Notice that I use the word ‘statement,’ rather than the word ‘argument.’ A statement is a description of the evidence that will be introduced during the trial. An argument is an interpretation of the significance of that evidence. When lawyers give their final arguments, after the evidence has been admitted and both sides have rested, they are summarizing their respective cases and attempting to persuade the jury to either return a verdict of guilty (prosecutor) or not guilty (defense).

Most lawyers believe closing arguments are the most important part of a trial. I disagree because, in my experience, jurors have already formed an opinion about the guilt or innocence of the accused before closing arguments. If a lawyer fails to take care of business during the evidentiary part of the case, they are not going to be able to change juror’s opinions no matter how persuasive they believe they can be.

As I’ve said many times, jury selection is the most important part of the trial because lawyers are selecting the people who will decide the case. Select the wrong people and there will be little to no chance of winning. Opening statements come in a close second because that is the first time that a lawyer can tell the jury about his case.

Since prosecutors have the burden of proof, they go first. Opening statements by prosecutors are like road maps with many sentences that begin with this phrase, ‘We expect the evidence will show that this defendant (fill in the blank). You will hear from witnesses who were present when he did it and they will tell you what he did. If done properly, everyone in the jury box will think the defendant is guilty.

Although the defense is not required to give an opening statement, only an incompetent fool would reserve or waive it. Particularly in a lengthy and complex case like the Boston Marathon Bombing case, the prosecution may take several months to put on their case. Defense has to say something to persuade jurors to reserve judgment until the case is over. This requires focusing their attention on weaknesses in the case.

We will get a much better idea about the strength of the government’s case when they give their opening statement. We will also be able to tell what the defense will be.

Opening statements should happen sometime during the first two weeks of February.

FYI: Judge O’Toole denied a new defense motion for a continuance of the trial based on the extensive publicity about the Paris terrorist attacks, which they claimed might adversely influence prospective jurors against Dzhokhar Tsarnaev.


Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

January 9, 2015

Friday, January 9, 2014

Good afternoon:

The first 1200 people summoned for jury service in the Boston Marathon Bombing Case have completed the 28 page juror questionnaire. Prosecution and defense counsel will be busy this weekend reviewing the questionnaires in preparation for voir dire that will start Monday. I believe we can reasonably expect Judge O’Toole will excuse about half of the group for financial hardship due to the length of the trial that is expected to extend into June. Students, teachers, self-employed business owners, single parents with young children and people with prepaid vacations are typically excused.

Several people have asked me to explain coconspirator and accomplice liability under federal law. State prosecutors rarely charge people with conspiracy, so most people don’t know much about it.

A conspiracy is an agreement by two or more people to commit a specific crime and the commission of an overt act by one of them in furtherance of the conspiracy. Often, the overt act is a crime, but it does not have to be. For example, purchasing fireworks is not a crime if you are old enough, but it could be an overt act in furtherance of a conspiracy to build a bomb using the gunpowder in the fireworks. Indeed, overt act 19 alleges that Tamerlan Tsarnaev traveled to Phantom Fireworks in Seabrook, New Hampshire on or about February 6, 2013, where he purchased 48 mortars containing about 8 pounds of low grade gunpowder for use in furtherance of the conspiracy charged in Count 1 (conspiracy to use a weapon of mass destruction resulting in death).

A member of a conspiracy is responsible for all crimes committed by other members of the conspiracy, even if he did not know that the person who committed the crime was a member of the conspiracy or that he was going to commit that crime, so long as it was reasonably foreseeable that some member of the conspiracy would commit that crime.

Mere knowledge of the existence of a conspiracy, or presence at a location where a crime is committed by a member of the conspiracy, is not sufficient to establish guilt and there is no affirmative duty to inform police about the conspiracy.

Federal prosecutors typically structure indictments by charging a conspiracy to commit a specific crime in count 1 and allege any number of overt acts committed in furtherance of the conspiracy alleged in that count. Every member of the alleged conspiracy is accused of committing at least one of the overt acts. Overt acts that constitute crimes are added as separate counts in the indictment.

For example, in Overt Act 31 of Count I, Dzhokhar Tsarnaev is accused of killing MIT Police Officer Sean Collier by shooting him in the head at close range with a Ruger 9mm P95 semiautomatic handgun and attempting to steal his service weapon.

In Count 16 he is charged with possessing and using a firearm during the course of the conspiracy to murder Officer Sean Collier.

The government’s theory regarding the purpose for this shooting is that the Tsarnaev brothers only had one gun (Tamerlan’s Ruger 9mm P95 semiautomatic) and they wanted to obtain a second gun for Dzhokhar, so they sneaked up on him while he was sitting in his patrol vehicle and Tamerlan executed him with a single shot to the head. However, they were unable to get the gun out of the holster.

The government will argue that Dzhokhar is legally responsible for that shooting, even though he did not shoot the officer, because he was a member of the conspiracy and the shooting was an overt act committed by Tamerlan in furtherance of the conspiracy.

The government has a second argument to hold Dzhokhar accountable for the murder based 18 USC 2(a), which provides in pertinent part:

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

This is the federal accomplice liability statute by which someone who assists another to commit a crime is as responsible as the person who committed the crime.

I hope this explanation helps readers to understand coconspirator and accomplice liability under federal law.

If we assume for the sake of argument that Dzhokhar Tsarnaev will be convicted on all counts on the basis of his own acts and on the basis of coconspirator and accomplice liability for acts committed by Tamerlan, that does not mean that his arguably lesser role would not result in an LWOP sentence instead of death. A lesser role is a mitigation factor as are his youth and subservient relationship to his brother.

I believe this case probably will boil down to whether one or more members of the jury decide that the evidence in support of those three factors merits an LWOP sentence. That is why I have stated that this case is not about winning or losing. It’s about living or dying.


Dzhokhar Tsarnaev Death Penalty Trial Started Today

January 5, 2015

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.


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